Davis v. Guerrero, 03-01-00028-CV.

• Decision Date: 10 January 2002
• Docket Number: No. 03-01-00028-CV.,03-01-00028-CV.
• Citation: 64 S.W.3d 685
• Parties: B. Shannon DAVIS and Susan Davis, Appellants, v. Julie GUERRERO and Luis A. Rios, Appellees.
• Court: Texas Court of Appeals

64 S.W.3d 685

B. Shannon DAVIS and Susan Davis, Appellants, v. Julie GUERRERO and Luis A. Rios, Appellees.

No. 03-01-00028-CV.

Court of Appeals of Texas, Austin.

January 10, 2002.

Rehearing Overruled February 7, 2002.

Duane Ronson Graeff, Daniel A. Corbin, Dan Corbin & Associates, Killeen, for appellants.

Fancy H. Jezek, Holbrook & Jezek, Harker Heights, for appellee-Guerrero.

Before Justices KIDD, B.A. SMITH and PURYEAR.

BEA ANN SMITH, Justice.

This appeal concerns the propriety of a district court's modification of an order in a suit affecting the parent-child relationship ("Kansas order"). B. Shannon Davis and Susan Davis contend that the district court should have abated its consideration of the Kansas order in deference to the existence in the county court at law of a guardianship order and a motion to revoke that guardianship. We conclude that the district court should not have modified the Kansas order until the guardianship issue was resolved; accordingly, we conclude that the district court erred by awarding attorney's fees against appellants. We vacate the modification order and remand the cause.

BACKGROUND

Collette Davis was born to Julie Guerrero ("Julie"¹) and Luis A. Rios in December 1993. The primary contestants for custody are Julie and her parents, the Davises. Collette moved eleven times among four states before her sixth birthday due to her maternal grandfather's military career and her mother's tempestuous relationship with Roman Guerrero. Custody of Collette was the subject of a Kansas order and a Texas guardianship. Though the points of error in this case are essentially procedural, the following factual background gives context to the disputed court actions.

Factual background

Julie and Rios met in Kentucky where their fathers were stationed in the military. Rios's father retired and moved his family to Florida; Julie's father, Shannon Davis, stayed in the military and moved his family to his new post in Kansas. The fifteen-year-old Julie visited the Rioses during spring break from school and deliberately became pregnant so she could move to Florida to be with Rios. By her fifth month of pregnancy, however, she had moved out and wanted an abortion. Instead, she moved to Kansas with her parents and decided to put the child up for adoption; Rios scuttled that plan by refusing to agree to terminate his parental rights.

In August 1994, a Kansas court signed the Kansas order (entitled "A Journal Entry Establishing Paternity, Setting Child Support and Visitation, Splitting Insurance and Medical Bills, and Denying Motion to Change Minor Child's Last Name"). The court appointed Julie and Rios joint custodians, giving Julie "primary residential custody." The Davises are not mentioned in the Kansas order. The Davis family (including Julie and Collette) had already moved to Texas in June 1994 pursuant to Shannon's biennial reassignment by the military. Julie lived with her parents for a while as she graduated from high school and attended college. She then moved out to live with Roman Guerrero (now her husband), leaving Collette with the Davises; according to the Davises, she visited them and Collette about every other week.

In April 1996, the Davises petitioned Bell County Court at Law No. 1 ("county court") to name them Collette's guardians. They alleged that the guardianship was necessary to provide Collette health insurance, support, and other benefits. They requested that the guardianship last until Collette turns eighteen years old or Julie lives with Collette outside their home. Julie agreed to the guardianship, but says she believed it to be limited in scope. On July 21, 2000, the county court appointed Shannon alone to be Collette's guardian without a limitation on his powers or the term of the guardianship.

Also in July 1996, the Davises and Collette moved to Hawaii, while Julie stayed in Texas to finish her associate's degree. She lived with Roman's parents before moving to Hawaii in December 1996. Julie attended the University of Hawaii for part of the Spring 1997 semester before dropping out and returning to Texas where she and Roman planned a December wedding. She became pregnant and they accelerated the wedding to October 1997; the Davises brought Collette to the wedding and left her with the couple in Texas. However, the Davises took Collette back to Hawaii in January 1998 when the Guerreros were having marital troubles. Julie gave birth to a son in April 1998.

When the Davises moved to Colorado in June 1998, they let the reconciled Guerreros take Collette to Texas. The Davises took Collette back to Colorado for a month-long visit in the summer. Shannon returned the child in September 1998 even though the Guerreros' marriage was again deteriorating. In November 1998, further deterioration caused Julie to send Collette back to the Davises; Roman filed for divorce. At Christmas 1998, Julie convinced the Davises that she and Roman had reconciled and that Collette should come to live with her. In May 1999, having seen that the Guerreros' marriage was again rocky, the Davises took Collette back to Colorado. Julie had agreed to let them take the child for a visit, then reneged when her attorney told her the visit would hurt her chance to dissolve the guardianship. Julie tried to prevent their departure by occupying their van until Shannon dragged her out and called the police, who refused to intervene in a civil domestic dispute; after consulting with her attorney, Julie agreed to let the Davises take Collette back to Colorado. As detailed below, in October 1999, Julie filed motions to revoke the guardianship and to enforce the Kansas order which gave her the right to determine the child's residence. Collette remained with her grandparents until the district court temporarily ordered shared access between the Davises and Julie in February 2000, pending resolution of this custody dispute.

None of the ample testimony regarding various deficiencies in the Guerrero and Davis households bears on or provides meaningful context for the procedures challenged on appeal.

Procedural background

The contest for legal possession of Collette proceeded in county and district courts in Bell County, though most of the action occurred in the district court.

On June 18, 1999, the Texas attorney general registered the Kansas order in Texas by suing to enforce its support provisions against Rios on Julie's behalf. In July 1999, Rios agreed to the entry of the district-court judgment for arrearages on child support.

On October 8, 1999, Julie filed a motion in county court to revoke the guardianship established there in July 1996. Julie contended that Collette no longer needed a guardian. Julie then filed a motion in district court on October 25, 1999 seeking to enforce the Kansas order's provision awarding her "primary residential custody." In response, on November 5, 1999, the Davises filed a motion to modify the Kansas order, requesting that the district court name them primary joint managing conservators. On November 10, 1999, the Davises filed a motion to abate the case pending resolution of Julie's motion in county court to revoke the guardianship. (Though the plea in abatement appears in their response to the enforcement motion, the Davises ask that the "case" be abated—a request that would also halt consideration of their previously filed motion to modify filed in the same case.) Julie later filed a motion to modify the Kansas order, requesting that her parents be named possessory conservators.

No signed order denying the motion to abate appears in the record, but the district court implicitly overruled the motion by holding a jury trial on the motions to modify and signing its Order in Suit to Modify Parent Child Relationship. See Tex.R.App. P. 33.1(a)(2)(A). In that order signed December 20, 2000, the district court continued Julie and Rios as joint managing conservators and affirmed Julie's right to establish Collette's primary residence. The court also granted Rios, the biological father, visitation for the first time in Collette's life. Additionally, the court named the Davises as possessory conservators entitled to possession of Collette for twenty-one days in the summer. The district court's order granting Julie the right to establish Collette's primary residence conflicts with the county court's order naming Shannon the guardian of Collette.

DISCUSSION

The Davises contend that the district court lacked jurisdiction to modify the Kansas order (1) because Julie did not properly register the Kansas order, (2) because Texas is not Collette's home state, and (3) because of the pending guardianship proceeding. They contend that the district court should have abated the custody proceeding in deference to the guardianship proceeding. They also contend that the district court erred by assessing attorney's fees against them.

The Davises argue that the district court lacked jurisdiction because Julie did not register the Kansas order. Because jurisdiction is a question of law, we review the trial court's decision de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998); see also In re M.W.T., 12 S.W.3d 598, 601 (Tex.App.-San Antonio 2000, pet. denied). It is not clear that formal registration was either mandatory or jurisdictional for modification or enforcement proceedings. See Act of April 6, 1995, 74th Leg., R.S., ch. 20 § 1, 1995 Tex. Gen. Laws 113, 145, codified at Tex. Fam.Code Ann. §§ 152.013-.015, deleted by Act of April 22, 1999, 76th Leg., ch. 34, § 1, 1999 Tex. Gen. Laws 52, 68 ("Old Code"). If registration was required, the Texas attorney general registered the Kansas order as a Texas order when enforcing the child-support provisions, and the Davises registered it under the new provisions² when filing their motion to modify—or at least were estopped from complaining about its deficient registration when they stated in their petition in this suit that...